Writing for the Thomson Reuters Legal Solutions Blog, Lieff Cabraser attorney Mark Chalos summarizes an important, recent decision by U.S. Court of Appeals for the Seventh Circuit that focused on the showing necessary for a class to be ascertainable, one of the requirements for class actions under Federal Rule of Civil Procedure 23.
The Seventh Circuit recently refused to adopt a heightened ascertainability standard that would effectively preclude certification of a wide variety of class actions – including many consumer class actions. In
Mullins v. Direct Digital, LLC, Case No. 15-1776 (7th Cir, July 28, 2015), the court dismantled the reasoning used by some courts – most notably the Third Circuit in Carrera v. Bayer Corp., 727 F.3d 300, 305-312 (3d Cir. 2013) – to deny class certification in cases where the identity of every class member is not known or knowable at the class certification stage. The Seventh Circuit also rejected the per se rule urged by the Third Circuit that a class cannot be certified where class membership can be established for some class members only by their own sworn testimony. The Seventh Circuit found that Rule 23 does not mention or imply a heightened ascertainability requirement; courts, however, already have adequate tools to ensure all parties are treated fairly in class cases without imposing this judicially-created additional requirement.